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November 2013

Featured In This Issue

The Seventh Circuit Court ofAppeals Gets A New Chief Judge, by Brian J. Paul

The Changing of the Guard in the Northern District of lllinois, by Jeffrey Cole

Address to the Seventh Circuit Bar Association and the Seventh Circuit Judicial Conference Annual Joint Meeting May 6, 2013, by Senator Richard G. Lugar

Through the Eyes of a Juror: A Lawyer's Perspective from Inside the Jury Room, by Karen McNulty Enright

The Seventh Circuit Inters "Self-Serving" as an Objection to the Admissibility of Evidence, by Jeffrey Cole

My Defining Experience as a Lawyer: Taking a Seventh Circuit Appeal, by Ravi Shankar

How 30 Women Changed the Course of the Nation's Legal and Social History: Commemorating the First National Meeting of Women Lawyers in America, by Gwen Jordan J.D., Ph.D.

Common Pleading Deficiencies in RICO Claims, by Andrew C. Erskine

You Can Have It Both Ways: FourthAmendment Standing in the Seventh Circuit, by Christopher Ferro and Marc Kadish

A Life Well Lived, by Steven Lubet

Significant Amendments to Rule 45, Federal Rules of Civil Procedure, to Take Effect on December 1, 2013, by Jeffrey Cole

Sealing Portions of theAppellate Record: A Guidefar Seventh Circuit Practitioners, by Alexandra L. Newman

'(&anges •SA alien es

The Circuit Rider

In This Issue

Letter from the President 1

The Seventh Circuit Court of Appeals Gets A New Chief Judge, by Brian J. Paul 2-4

The Changing of the Guard in the Northern District of Illinois, by Jeffrey Cole 5-7

Address to the Seventh Circuit Bar Association and the Seventh Circuit Judicial Conference Annual Joint Meeting May 6, 2013, by Senator Richard G. Lugar 8-10

Through the Eyes of a Juror: A Lawyer's Perspective from Inside the Jury Room, by Karen McNulty Enright 11-13

The Seventh Circuit Inters "Self-Serving" as an Objection to the Admissibility of Evidence by Jeffrey Cole 14-17

My Defining Experience as a Lawyer: Taking a Seventh Circuit Appeal, by Ravi Shankar 18-22

How 30 Women Changed the Course of the Nation's Legal and Social History: Commemorating the First National Meeting of Women Lawyers in America, by Gwen Jordan J.D., Ph.D . 23-27

Common Pleading Deficiencies in RICO Claims, by Andrew C. Erskine 28-33

You Can Have It Both Ways: Fourth Amendment Standing in the Seventh Circuit, by Christopher Ferro and Marc Kadish 34-36

A Life Well Lived, by Steven Lubet 37 -38

Significant Amendments to Rule 45, Federal Rules of Civil Procedure, to Take Effect on December 1, 2013, by Jeffrey Cole 39-41

Sealing Portions of the Appellate Record: A Guide for Seventh Circuit Practitioners, by Alexandra L. Newman 42-49

Get Involved 4

Send Us Your E-Mail 7

Writers Wanted' 17

Upcoming Board of Governors ' Meeting 22

Seventh Circuit Bar Association Officers for 2012-2013 /Board of Governors /Editorial Board 50

- *

The Seventh Circuit has identified Baxter International, Inc. v. Abbott Laboratories and Union Oil Co. of California v. Leavell as the seminal cases setting forth the criteria that parties must

The Circuit Rider 43

Continued on page 44

Sealing Portions of the Appellate Record Continued from page 42

To enforce the presumption of public access to the appellate record, Seventh Circuit Operating Procedure 10 requires a party to file a motion to seal documents contained in the appellate record if the party wants a document that was sealed by the district court to remain under seal in the court of appeals:

7th Circuit Operating Procedure 10: Sealing Portions of the Record

(a) Requirement of Judicial Approval. Except to the extent portions of the record are required to be sealed by statute (e.g., 18 U.S.C. §3509(d)) or a rule of procedure (e.g., Fed. R. Crim. P. 6(e), Circuit Rule 26.1(b)), every document filed in or by this court (whether or not the document was sealed in the district court) is in the public record unless a judge of this court orders it to be sealed.

(b) Delay in Disclosure. Documents sealed in the district court will be maintained under seal in this court for 14 days, to afford time to request the approval required by section (a) of this procedure.'

Because the presumption under Operating Procedure 10 is that documents will not be sealed, a motion to seal must demonstrate sufficient cause to keep documents under seal. A generic motion will not suffice. A motion to seal must be specific and must "analyze in detail, document by document, the propriety of secrecy providing reasons and legal citations."' The Seventh Circuit has recently advised that it "does not look favorably on indiscriminate, reflexive motions to seal the appellate record, but narrow, specific requests will be granted when based on articulated, reasonable concerns for confidentiality."' Yet parties must act promptly. Unless a party moves to seal within the 14-day time limit, the court will place into the publicly available appellate record all items previously sealed in the district court."

follow when moving to seal documents in the appellate record." The Baxter International and Union Oil requirements for motions to seal are not new, but the court has repeatedly noted -sometimes disparagingly — that even experienced counsel frequently fail to meet these requirements in their motions to seal.'2 Therefore, practitioners before the Seventh Circuit should be alert to the following principles when drafting motions to seal documents in the appellate record:

Excluding Documents from the Appellate Record

In light of the Seventh Circuit's rigorous requirement that "counsel analyze in detail, document by document, the propriety of secrecy" for documents sought to be sealed in the appellate record, counsel, before drafting a motion to seal, should first determine whether any documents may be excluded from the appellate record in the first instance. The court has instructed that "it is often better to exclude the documents from the appellate record than to analyze at length the reasons why they should or should not be sealed." 13 Furthermore, the court has emphasized, returning documents to the district court "is appropriate when they are not among 'the materials that formed the basis of the parties' dispute and the district court's resolution.",14

In asking for a document to be returned to the district court, counsel should explain to the court of appeals how the document "contribute[s] little to the resolution of the case" and why the document "could be returned to the district court without loss to the appellate process."15 A careful preliminary review of which documents actually constitute the basis of the parties' dispute and the grounds for the district court's resolution will undoubtedly save counsel time in preparing the motion to seal and enable the court of appeals to rule more efficiently on the motion.

Records Required to be Sealed by Statute or Rule of Procedure

As Operating Procedure 10 acknowledges, a statute or rule of procedure may require some portions of the appellate record to be sealed.16 For example, under 18 U.S.C. § 3509(d), the name of a minor victim of a sexual assault must be filed under seal. Similarly, certain "matter[s] occurring before the grand jury" must be sealed pursuant to Federal Rule of Criminal Procedure 6(e)(2), and under Seventh Circuit Rule 26.1(b) a litigant using a

The Circuit Rider 44

Sealing Portions of the Appellate Record Continued from page 43

pseudonym must disclose his or her true name in the disclosure statement but may do so wider seal. Counsel should specify the statute or rule of procedure under which the motion to seal is made.

It is noteworthy that not all federal statutes that concern data privacy contain explicit provisions requiring that records be sealed in judicial proceedings. For example, the "Standards for Privacy of Individually Identifiable Health Information" under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") does not provide for the filing of medical records under seal in court." The HIPAA privacy regulations instead require that health care providers and organizations, as well as their business associates, develop and follow procedures that ensure the confidentiality and security of protected health information when it is transferred, received, handled, or shared, but the regulations do not govern the transmission of medical records in judicial proceedings." Additionally, the Right to Financial Privacy Act of 1978 does not provide in general for the sealing of fmancial records in judicial proceedings; instead, the statute allows financial records about a customer obtained from a financial institution pursuant to a subpoena issued under the authority of a federal grand jury to be disclosed for some purposes as authorized by Federal Rule of Criminal Procedure 6(e)." Despite the lack of expansive or explicit sealing requirements under these statutes, prudent counsel should exercise care before allowing covered information to be unsealed; for example, counsel should consider requesting to exclude sensitive medical or financial records from the record, as described above, where the district court's ruling did not necessarily rely on them.

Documents Containing Trade Secrets

in many cases the existence of a trade secret will require an "ad hoc evaluation of all the surrounding circumstances.'"'

In preparing a motion to seal, counsel should evaluate applicable trade secret doctrines to determine whether there is a colorable argument that a document sought to be sealed in the appellate record contains trade secrets. For example, under the Uniform Trade Secrets Act (which has been adopted in all states except New York, North Carolina, and Massachusetts), a "trade secret" is defined as "information, including a formula, pattern, compilation, program, information, including a formula, pattern, compilation, program, device, method, technique, or process, that (i) derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."'

Additionally, courts frequently refer to common law factors (which are compiled in § 757 of the Restatement (First) of Torts) in determining whether information is a trade secret, including: (1) the extent to which the information is known outside of the party's business; (2) the extent to which the information is known by employees and others involved in the party's business; (3) the extent of measures taken by the party to guard the secrecy of the information; (4) the value of the information to the party's business and to its competitors; (5) the amount of time, effort, and money expended by the party in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.' Counsel should evaluate these or other appropriate factors when moving to seal documents in the appellate record on the ground that they contain trade secrets; failure to do so can subject the motion to denial."

In one recent case, KM Enterprises, Inc. v. Global Traffic

Technologies, Inc., the Seventh Circuit granted a motion to seal a document in an antitrust action on the basis of trade secrets where the appellee-movant asked that the document be sealed or returned to the district court to protect sensitive, confidential pricing and customer information."

The Seventh Circuit has recognized that trade secrets are a category of information that may be sealed in the appellate record." Significantly, the court has observed that a trade secret "is one of the most elusive and difficult concepts in the law to define," and

Continued on page 45

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